Muller v Nebo Shire Council - [2002] QSC 84

SUPREME COURT OF QUEENSLAND

CITATION:

Muller v Nebo Shire Council [2002] QSC 084

PARTIES:

SHANE HENRY MULLER

(plaintiff/respondent)

v

NEBO SHIRE COUNCIL

(defendant/applicant)

FILE NO/S:

S127 of 2000

DIVISION:

Trial Division

DELIVERED ON:

11 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2002

JUDGE:

Mackenzie J

ORDER:

(1)That the plaintiff undergo, at WorkCover’s expense, a medical examination by a doctor to be selected by the plaintiff from a panel comprising:

(a)Dr Tony Blue

(b)Dr Geoffrey Bendeich

(c)Dr Peter Boys

(2)That the costs of and incidental to the application be reserved.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PROCEDURE BEFORE HEARING - application under s 286 WorkCover Queensland Act 1996 requesting the plaintiff/respondent undergo further medical examination – whether the request is “unreasonable or unnecessarily repetitious”

WorkCover Queensland Act 1996 (Qld), s 286, s 293 (8), s 293 A (6), s 294, s 442

Timms v Yandilla Park [2000] QSC 281, considered

COUNSEL:

D V McMeekin SC for the plaintiff
J P Kimmins for the defendant

SOLICITORS:

Macrossan & Amiet for the plaintiff
HBM Lawyers for the defendant

MACKENZIE J: This is an application under s 286 of the WorkCover Queensland Act 1996 for an order that the plaintiff undergo a medical examination by one of three orthopaedic surgeons listed in the application. Section 286 of the Act relevantly provides:

“(1)WorkCover may, at any time, ask the worker to undergo, at WorkCover’s expense –
(a)a medical examination by a doctor to be selected by the worker from a panel of at least 3 doctors nominated in the request; or
…..

(2)The worker must comply with the request unless it would be unreasonable or unnecessarily repetitious.”

Where a request has been made the worker has an obligation to comply unless it is unreasonable or unnecessarily repetitious. The words of the statute must be the ultimate determining feature as to whether the obligation exists. However, in Timms v Yandilla Park Ltd [2000] QSC 281, there is an analysis of the kinds of factors taken into account in exercising the inherent jurisdiction of the Court to order a medical examination. Issues of personal liberty and the right of parties to call such witnesses as they think fit are important in deciding whether it would be unreasonable or unnecessarily repetitious to request a further examination. In other words, there may be cases where the two factors collide and a decision must be made whether any further examination should be forced upon the worker.

To understand what is involved in the present case it is desirable to recount some of the detail of what has happened so far. The action is based on an injury or injuries which the plaintiff says he suffered in the course of his employment by the defendant. He made an application for compensation from WorkCover in respect of the first incident. That claim was accepted and he was paid weekly benefits for time off work and medical expenses. In February 1998 he made another application in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] QSC 84
Decision Date: 11 March 2002

CaseChat Overview and Summary

The case before the court involved a dispute between the plaintiff, Muller, and the defendant, Nebo Shire Council. The plaintiff sought compensation for a work-related injury and the defendant sought to have the plaintiff undergo further medical examination to assess the extent of the injury and the impact on the plaintiff's ability to work. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the court was whether the defendant's request for the plaintiff to undergo further medical examination was reasonable and not unnecessarily repetitious. The court considered the provisions of section 286 of the WorkCover Queensland Act 1996, which allows for a party to request a further medical examination if they consider it necessary. The court also considered the previous medical examinations that had been conducted and the evidence presented by both parties.

The court found that the defendant's request for a further medical examination was reasonable and not unnecessarily repetitious. The court noted that the previous medical examinations had not provided sufficient information to determine the extent of the plaintiff's injury and the impact on their ability to work. The court also noted that the plaintiff had not provided any evidence to suggest that a further medical examination would be unnecessary or unreasonably repetitious. The court ordered that the plaintiff undergo a further medical examination by a doctor selected from a panel of three doctors nominated by the defendant.

The court also ordered that the costs of and incidental to the application be reserved. This means that the parties will need to negotiate and agree on the costs associated with the further medical examination before the costs are finalised. The court's decision provides guidance on the circumstances in which a party may request a further medical examination in a workers' compensation claim and the factors that the court will consider in determining the reasonableness of such a request.

Orders

Orders of the court

(1)That the plaintiff undergo, at WorkCover’s expense, a medical examination by a doctor to be selected by the plaintiff from a panel comprising:

(a)Dr Tony Blue

(b)Dr Geoffrey Bendeich

(c)Dr Peter Boys

(2)That the costs of and incidental to the application be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Muller v Nebo Shire Council [2002] QSC 084
PARTIES:	SHANE HENRY MULLER (plaintiff/respondent) v NEBO SHIRE COUNCIL (defendant/applicant)
FILE NO/S:	S127 of 2000
DIVISION:	Trial Division
DELIVERED ON:	11 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2002
JUDGE:	Mackenzie J
ORDER:	(1)That the plaintiff undergo, at WorkCover’s expense, a medical examination by a doctor to be selected by the plaintiff from a panel comprising: (a)Dr Tony Blue (b)Dr Geoffrey Bendeich (c)Dr Peter Boys (2)That the costs of and incidental to the application be reserved.
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PROCEDURE BEFORE HEARING - application under s 286 WorkCover Queensland Act 1996 requesting the plaintiff/respondent undergo further medical examination – whether the request is “unreasonable or unnecessarily repetitious” WorkCover Queensland Act 1996 (Qld), s 286, s 293 (8), s 293 A (6), s 294, s 442 Timms v Yandilla Park [2000] QSC 281, considered
COUNSEL:	D V McMeekin SC for the plaintiff J P Kimmins for the defendant
SOLICITORS:	Macrossan & Amiet for the plaintiff HBM Lawyers for the defendant